Knickerbocker Steam-Towage Co. v. The City of Haverhill

66 F. 159 | S.D.N.Y. | 1895

BE OWN, District Judge.

1. I do not find sufficient evidence to support the claim in the cross libel that the hawser was fastened in an improper manner, or that the mode of fastening caused any damage, or contributed to produce the leak; or that there wa,s any negligence by tbe Ice King wben sbe ran alongside of tbe City of Haverhill to rescue ber from sinking; In tbe circumstances of a cboppy sea, tbe nighttime, and tbe City of Hayerbill being a light flat-bottomed boat, and tossing almost like a chip upon tbe waves, tbe slight damage done in necessarily going alongside, in tbe absence of evidence of any specific acts of negligence or lack of care and reasonable nautical skill, should be set down to sea perils in a difficult situation, rather than to any presumptive negligence in the Ice King.

2. Tbe service of tbe Ice King in deviating from tbe usual course of towage on a trip from Boston to New York by putting in to Newport with tbe City of Haverhill, and keeping ber afloat by ber pumps, was a sendee wholly outside of tbe contemplation of tbe parties in making tbe towage contract. The deviation was made necessary because tbe City of Haverhill sprung a dangerous leak, under circumstances not at' all extraordinary at that season, but only such as were to be expected in December, wben the trip was undertaken. Tbe leak, I find, occurred through, no fault of tbe Ice King, or lack of reasonable care on ber part, but, as ber captain says, from striking a heavy sea, in the roll from tbe southward. She- was a flat-bottomed river steamer, not designed for service at sea. Tbe contract of the parties for towage to New York imported that tbe owner of tbe City of Haverhill should bear all risks, save those caused by tbe fault of the tug. On plunging in tbe southerly roll some seams were opened, and sbe was saved from sinking through tbe Ice King’s superior pumps, which were sufficient to keep ber afloat until sbe was towed by the Ice King into Newport, where tbe open seams on ber port side, some 20 feet aft of tbe stem, were temporarily filled in, sufficiently to enable tbe towage to be completed after, tbe loss of a day’s time. This was an extraordinary service, because not within tbe scope or contemplation of the contract. It should, therefore, be compensated for on salvage principles. • But tbe equitable relation of the parties in such cases, where the tow is all the time in charge of the tug, requires, I think, tbe allowance of a much less compensation than would be proper to be given to an independent tug. Some of tbe important considerations in salvage awards are absent; and here there was no actual danger incurred by tbe tug.

Tbe great differences in tbe estimates of tbe value of tbe City of Haverhill, viz., from $2,500 to $10,000, are embarrassing, so far as that element is to be ‘considered in fixing the award. On tbe whole evidence, I think $800 will be a proper award, with costs, and with a dismissal of tbe cross libel, without costs..

Decrees accordingly.